No. 80-113
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
WILLIAM V. CARROCCIA and
MICHELE V C. CARROCCIA,
.
Plaintiffs, Respondents and
Cross-Appellants,
CHARLES S. TODD, d/b/a
TODD CONSTRUCTION CO.,
Defendant and Appellant.
Appeal from: District Court of the Sixth Judicial ~istrict,
In and for the County of Sweet Grass.
Honorable Jack D. Shanstrom, Judge presiding.
Counsel of Record:
For Appellant:
James A. Tulley, Big Timber, Montana
Far Respondents:
Crowley, Haughey, Hanson, Toole & Dietrich, Billings,
Montana
Submitted on briefs: July 11, 1980
Decided : AUG 1 3 1980
Filed: AUG 1 3 198Q
Mr. Justice John C. Sheehy delivering the Opinion of the
Court.
This is an appeal by the defendant Charles S. Todd,
from a judgment against him in the sum of $15,717.42,
entered in the District Court, Sixth Judicial District,
Sweetgrass County. The suit was for negligence by the
defendant in the construction of a log home for the plaintiffs
(Carroccias). After a nonjury trial, the District Court
entered its damage award for the plaintiffeland also dismissed
Todd's counterclaim for payment of work completed, and
ordered all parties to pay their respective costs. Todd
appeals from the judgment of damages against him and from
the order dismissing his counterclaim. Plaintiffs cross-
appeal from the denial by the District Court of their suit
costs.
Todd's appeal presents two issues: one, whether the
evidence was sufficient to support the District Court's
finding of liability on the part of Todd; and two, whether
the counterclaim was properly dismissed.
In the Carroccia's cross-appeal, the single issue is
whether the plaintiffs are entitled to costs.
In December 1973, William V. Carroccia and Michele V.
Carroccia entered into a contract with Charles S. Todd,
d/b/a Todd Construction Company, for the construction of a
log home on the Carroccia ranch near Big Timber. Todd had
been recommended as a skilled homebuilder who had previous
experience in building log homes.
Before the Carroccias moved into the log home, it was
damaged during a windstorm in December 1973 and the roof was
displaced during a January 1974 windstorm. ~ollowingthe
latter windstorm, the Carroccias agreed that odd should
place tie rods in the wall of the log home in an attempt to
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correct the structural problems of the house. After the
completion of those repairs, the Carroccias discharged Todd
from the contract. Todd was not paid for the installation
of the tie rods.
The Carroccia family moved into the home in March 1974.
In January 1975, another windstorm occurred and again the
house was damaged. The Carroccias reported that a breeze
came through the west wall, the pictures were swinging
freely on the south wall which was flexing, a lantern which
hung from the lower truss of the ceiling was swinging un-
controllably and one of the upper trusses in the living room
loudly cracked.
Following the windstorm, the Carroccias made repairs.
The roof was replaced, the west wall was dismantled and
properly insulated, sway braces were installed in the roof
trusses, and door and window installation was corrected.
Necessary remaining repairs not done at the time of trial
included correction of improper base log installation,
restoration of three log walls to plumb, and straightening
of the bowed west wall.
The dispute of facts at trial was whether the damages
to the house were caused by unsound building techniques, or
by defective home design and construction plans. The
Carroccias presented two expert witnesses, the log salesman
and the builder who repaired the home. Each testified that
the construction techniques employed by Todd on the base
logs, doors and windows, chimney and roof, all contributed
to the instability of the home. Todd produced an expert who
was an architect and structural engineer who testified that
the home's design was inadequate due to the excessive wind
loading prevalent at the home's site.
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The District Court in its findings found essentially
that Todd had not constructed the roof of the home according
to the details provided and in contradiction to representations
made by Todd in his construction bid and that other construction
defects by Todd brought about the instability of the house
and its hazard to safety. Todd contends that these findings
are not supported by substantial credible evidence especially
since the District Court did not accord any weight to the
testimony of his expert architect.
In Lumby v. Doetch (1979), - Mont . - 600 P.2d 200,
,
202, 36 St.Rep. 1684, 1687, this Court stated:
"In resolving this issue, we are guided by a number
of principles established by this Court. The
credibility of witnesses and the weight to be given
their testimony are matters for the District Court's
determination in a nonjury case. (Citation omitted.)
Thus, in examining the sufficiency of the evidence,
we must view the same in a light most favorable to
the prevailing party, and we will presume the findings
and judgment by the District Court are correct. (Citation
omitted.) We will not overturn the findings and con-
clusions of the District Court unless there is a decided
preponderance of the evidence against them, and when
the evidence furnishes reasonable grounds for different
conclusions, the findings of the District Court will not
be disturbed. (Citation omitted.) The burden of proof
is on the appellant. (Citation omitted.)"
Appellant argues the District Court erred in not accepting
the testimony of his expert witness, because he had expertise
in engineering and architecture, which plaintiffs' witnesses
did not. However, this Court recently stated in Berger v.
City of Billings (1980), - Mont . , 607 P.2d 558, 560,
37 St.Rep. 397, 400, that where substantial evidence in the
record supports the findings of the District Court, the fact
that the prevailing party does not present expert testimony
does not mean that the testimony produced by experts on the
other side is inherently superior. Where the evidence is
conflicting, but the findings are supported by substantial
credible evidence, the findings of the District Court will
be upheld. Rule 52 (a), M.R.Civ.P.
On the second issue, Todd's counterclaim concerns
the Carroccias'refusal to pay for installation of the tie
rods inserted in the walls of the house. The Carroccias
authorized the installation of the rods after the January
windstorm and ratified the agreement after the installation
was completed. However, there was testimony that the tie
rods themselves were improperly installed in grooves meant
to accommodate splines in window and door openings. Also,
the house exhibited severe instability in January 1975,
nearly a year after the installation of the rods.
Todd had a common law duty to construct the house in a
workmanlike manner. Mitchell v. Carlson (1957), 132 Mont.
1, 10, 313 P.2d 717, 721-2. Here the duty of construction
included proper installation of logs, doors and windows in
such a manner as to assure stability. The tie rods were
installed only after the original construction had proven
inadequate. The instability persisted after the installation
of the rods.
A promise to do what a person is already obligated by
law or contract to do is not sufficient consideration for a
promise made in return. Kovacich v. Metals Bank & Trust
Company (1961), 139 Mont. 449, 451, 365 P.2d 639, 640.
Todd's duty as a contractor to provide a stable log home was
not fulfilled by him at anytime before or after the installation
of the tie rods. Consideration was therefore lacking in the
claimed supplemental agreement.
Rules 41(b) and (c), M.R.C~V.P., provide that a counterclaim
may be dismissed where, upon the facts and the law, the
claimant has shown no right to relief. Consideration is an
essential element of a contract. Section 28-2-102(4), MCA.
Since consideration was lacking, the contract could not be
enforced, and Todd had no right to relief on his counterclaim.
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However, Todd c l a i m s an e s t o p p e l h e r e b e c a u s e t h e
C a r r o c c i a s promised t o pay f o r t h e t i e r o d s a f t e r t h e y
w e r e i n s t a l l e d when t h e y c o l l e c t e d t h e i n s u r a n c e f o r damages
on t h e home. The C a r r o c c i a s d i d i n f a c t c o l l e c t i n s u r a n c e
f o r t h e home damage, b u t t h e r e a f t e r r e f u s e d t o make payment
t o Todd f o r t h e t i e r o d s . Todd c l a i m s an e s t o p p e l a g a i n s t
t h e C a r r o c c i a s on t h i s p o i n t .
One of t h e e l e m e n t s t h a t a p a r t y must e s t a b l i s h i n t h e
evidence t o j u s t i f y estoppel i n h i s favor is t h a t t h e p a r t y
c l a i m i n g e s t o p p e l r e l i e d on t h e r e p r e s e n t a t i o n o r promise
made t o him and a c t e d upon it t o h i s p r e j u d i c e . S t a t e ex
r e l . Howeth v. D. A. Davidson & Co. ( 1 9 7 3 ) , 163 Mont. 355,
367, 517 P.2d 722, 728. T h i s e l e m e n t i s l a c k i n g h e r e . The
p a r t y c l a i m i n g e s t o p p e l must i n f a c t a c t upon t h e promise o r
r e p r e s e n t a t i o n i n s u c h manner a s t o change h i s p o s i t i o n f o r
t h e worse. Smith v. K r u t a r ( 1 9 6 9 ) , 153 Mont. 325, 332, 457
P.2d 459, 463. Moreover, e s t o p p e l h a s r e f e r e n c e t o c o n d u c t
o f t h e p e r s o n e s t o p p e d , and h a s no a p p l i c a t i o n where t h e
o m i s s i o n s of t h e p a r t y c l a i m i n g e s t o p p e l b r o u g h t a b o u t t h e
problem. F i r s t Sec. Bank of Bozeman v. Goddard ( 1 9 7 9 ) ,
1046,
Mont . ,
- 593 P.2d 1040,/36 St.Rep. 854, 860-1; and s e c t i o n
The t h i r d i s s u e r e l a t e s t o t h e ~ a r r o c c i a s ' c r o s s - a p p e a l
from t h e d e n i a l o f t h e i r c o s t s by t h e D i s t r i c t C o u r t . Rule
54 ( d ) , M. R.Civ. P. , provides c o s t s t o t h e prevailing party
u n l e s s t h e c o u r t o t h e r w i s e d i r e c t s , e x c e p t where e x p r e s s l y
p r o v i d e d by s t a t u t e . S e c t i o n 25-10-101(3), MCA, e x p r e s s l y
p r o v i d e s c o s t s , as o f c o u r s e , i n a c t i o n s i n which p l a i n t i f f
r e c o v e r s money o r damages e x c e e d i n g $50.00.
Here, p l a i n t i f f s s o u g h t monetary damages from t h e
d e f e n d a n t and r e c e i v e d judgment i n t h e amount of $15,717.42.
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Pursuant to section 25-10-101(3), MCA, plaintiffs were
entitled to costs. Medhus v. Dutter (1979), Mont .- I
603 P.2d 669, 674, 36 St.Rep. 2044, 2051. The District
Court erred in denying the plaintiffs' claim for costs.
The judgment for damages in favor of the plaintiffs is
affirmed. The order of the District Court dismissing Todd's
counterclaim is also affirmed. The order denying costs to
the Carroccias is reversed. The cause is remanded for
determination of the ~arroccias'costs.
We Concur:
~ h f e fJustice
&FT
>A Jus es
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